Ramon L. Smith v. State of Idaho

ORDER AND AMENDED OPINION

ORDER

The Opinion filed September 7, 2004, at Slip Op. 12953 is amended as follows:

and insert in its stead:

At page 12958, delete section heading A which reads: ..

and insert in its stead:

At page 12958, delete the first paragraph of Part A and insert in its stead:

At page 12959 delete the last sentence of the first partial paragraph that reads:

and insert in its stead:

At page 12959 insert a new footnote 3 at the end of the above substituted sentence (i.e., that ends with “custodian. Id.’’): longstanding rule that personal jurisdiction, in the traditional sense, can be waived and need not be addressed sua sponte. Rather, we understand Stanley to use the term “personal jurisdiction” in reference to the technical custodian requirement of § 2242 and the Rules Governing Section 2254 Cases. See Stanley, 21 F.3d at 360 (citing 28 foll. U.S.C. § 2254 Rule 2(a)). A court need not raise this technical issue sua sponte, and a party may waive that issue.

We understand Belgarde to require us to consider, sua sponte, a different issue — whether the named respondent has power to provide the desired relief. The asserted defect in Belgarde was the failure to…